Citation Nr: 9905760
Decision Date: 03/01/99 Archive Date: 03/11/99
DOCKET NO. 97-24 237 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for high frequency
sensorineural hearing loss and tinnitus of the right ear.
2. Entitlement to an increased rating for posttraumatic
stress disorder (PTSD), currently evaluated as 50 percent
disabling.
3. Entitlement to an increased rating for submucous
resection with retained foreign body, currently evaluated as
10 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Mainelli, Associate Counsel
INTRODUCTION
The appellant had active service from April 1968 to October
1971.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from separate rating decisions issued by the St.
Petersburg, Florida, Regional Office (RO) of the Department
of Veterans Affairs (VA). In a rating decision dated in June
1996, the RO denied the appellant's claims for service
connection for hearing loss and tinnitus of the right ear.
In a rating decision dated in February 1997, the RO declined
claims for increased ratings for PTSD and submucous resection
with retained foreign body.
The issue of an increased rating for submucous resection with
retained foreign body is addressed in the remand appended to
this decision.
FINDINGS OF FACT
1. The appellant, who is a recipient of the Combat Infantry
Badge and the Purple Heart, was exposed to acoustical trauma
during his service in the Republic of Vietnam during the
Vietnam War.
2. The appellant's right ear high frequency sensorineural
hearing loss disability stems from his exposure to acoustical
trauma in service.
3. The appellant's right ear tinnitus stems from his
exposure to acoustical trauma in service.
4. The appellant's PTSD is manifested primarily by sleep
disturbances, hypervigilance, nightmares, daymares, intrusive
thoughts of Vietnam, social isolation and depression, but
without impairment of psychomotor functioning, judgment,
thought processes or memory.
5. The appellant's PTSD results in serious, but not total,
impairment in social and occupational functioning.
CONCLUSIONS OF LAW
1. Right ear high frequency sensorineural hearing loss
disability was incurred in service. 38 U.S.C.A. §§ 1110,
1154, 5107 (West 1991); 38 C.F.R. § 3.385 (1998).
2. Right ear tinnitus was incurred in service. 38 U.S.C.A.
§§ 1110, 1154, 5107 (West 1991).
3. The schedular criteria for an evaluation of 70 percent,
but no higher, for PTSD have been met. 38 U.S.C.A. §§ 1155,
5107(b) (West 1991); 38 C.F.R. §§4.1, 4.7, 4.132, Part 4,
Diagnostic Code 9411 (1995-1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Service connection for right ear hearing loss and
tinnitus
Initially, the Board finds that the appellant has submitted a
claim which is "well grounded" within the meaning of 38
U.S.C.A. § 5107(a). That is, he has submitted "a plausible
claim, one which is meritorious on its own or capable of
substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 81
(1990). Furthermore, he has undergone recent VA examination
and the record does not reveal any additional sources of
relevant information which may be available concerning the
present claim. The Board accordingly finds the duty to
assist him, mandated by 38 U.S.C.A. § 5107, has been
satisfied.
The appellant contends that his sensorineural hearing loss
and tinnitus of the right ear stems from his exposure to
combat related acoustical trauma such as helicopter engines
and land mines. Specifically, he recalls an incident of
having a land mine explode in close proximity to his right
ear. Following that incident, he experienced deafness in the
right ear which lasted 4- 5 hours in duration. He also
experienced tinnitus in the right ear which has been chronic
since that incident.
Service department records reveal that the appellant is a
combat veteran who has been awarded the Combat Infantry Badge
and the Purple Heart for his service in the Republic of
Vietnam during the Vietnam War. He has been service
connected for PTSD as well as a nose injury stemming from
falling out of a helicopter. Thus, his contentions of in-
service exposure to acoustical trauma, to include land mine
explosions and helicopter engines, are corroborated by
military records of file, and are deemed consistent with the
circumstances and conditions of the combat environment. See
38 U.S.C.A. § 1154(b) (West 1991). Accordingly, it is
without question that the appellant was exposed to acoustical
trauma during service.
It is also without question that, for VA purposes, the
appellant has right ear sensorineural hearing loss
disability. The August 1997 VA audiological examination
shows that the appellant's right ear hearing loss disability
is currently manifested by pure tone threshold of 40 decibels
at 4000 hertz and speech recognition using the Maryland CNC
Test is 88% for the right ear. Under VA regulations,
impaired hearing is considered a disability when the auditory
threshold in any of the frequencies 500, 1000, 2000, 3000, or
4000 Hertz is 40 decibels or greater; or when the auditory
thresholds for at least three of the frequencies 500, 1000,
2000, 3000, or 4000 Hertz are 26 decibels or greater; or when
speech recognition scores using the Maryland CNC Test are
less than 94 percent. 38 C.F.R. § 3.385 (1998).
In this case, the issue that appears to be in controversy is
the causal relationship, or nexus, between the appellant's
in- service exposure to acoustical trauma and his right ear
hearing loss and tinnitus which developed many years
thereafter. In this respect, service medical records do not
reveal complaint, treatment, manifestation or diagnosis of
hearing loss or tinnitus. Right ear hearing loss and
tinnitus was first detected by VA in May 1996, approximately
25 years after the appellant's discharge from service.
In May 1996, VA audiology consultation discovered a high
frequency sensorineural hearing loss of the right ear which,
according to the VA examiner, was "secondary to [the
appellant's] military trauma exposure history." In an
August 1997 VA audiological examination report, an examiner
opined that the appellant's right ear hearing loss appeared
to be "consistent with the type of noise exposure and
acoustic trauma reported by [the appellant] during his
military service." The Board notes that these opinions were
rendered by medically trained professionals and are based
upon examination of the appellant with consideration given to
his indisputable history of exposure to acoustical trauma
during service. Therefore, such supportable opinions are
sufficient to well ground this claim. See Hernandez-Toyens
v. West, 11 Vet.App. 379, 382 (1998) (medical opinion
expressed in terms of 'possible' or 'plausible' sufficient to
well ground claim). There are no countervailing medical
opinions of record. See Hanson v. Derwinski, 1 Vet.App. 512
(1991) (an appellant is entitled to service connection where
he submits supportable medical opinion of an etiological
relationship that is unrebutted by other medical opinion of
record). Accordingly, the Board concludes from this evidence
that the appellant's high frequency sensorineural hearing
loss of the right ear stems from his in- service exposure to
acoustical trauma and, thus, was incurred in service.
Additionally, the Board also finds that tinnitus of the right
ear was incurred during service. The May 1996 VA audiology
consultation noted that tinnitus, which the appellant noticed
since impulse noise exposure in Vietnam, was secondary to
cochlear damage of the right ear. The VA examiner in August
1997 also noted that the appellant reported symptomatology of
tinnitus beginning in active service. Such medical evidence
is sufficient to well ground this claim. Savage v. Gober, 10
Vet.App. 488 (1997); 38 C.F.R. § 3.303(b) (1998)(well
grounded claim is established where competent medical
evidence, or in certain cases lay evidence, relates a present
condition to a condition which started in service based upon
continuity of symptomatology). Accordingly, the Board
concludes from this evidence that the appellant's tinnitus of
the right ear stems from his in- service exposure to
acoustical trauma and, thus, was incurred in service.
II. Increased rating for PTSD
As a preliminary matter, the Board finds that the appellant's
claim is "well grounded" within the meaning of 38 U.S.C.A.
§ 5107(a). That is, he has presented a claim which is
plausible. See Proscelle v. Derwinski, 2 Vet.App. 629, 631
(1992). Furthermore, he has undergone a recent VA
examination and the record does not reveal any additional
sources of relevant information which may be available
concerning the present claim. The Board accordingly finds
the duty to assist him, mandated by 38 U.S.C.A. § 5107, has
been satisfied.
The appellant contends, in essence, that his PTSD
symptomatology has resulted in social and occupation
impairment to a degree much more severe than that represented
by his 50 percent disability currently in effect.
In January 1996, the appellant underwent a VA PTSD
examination. He told the examiner his history of exposure to
stressors during his combat service to include his eyewitness
account of seeing his friend die after stepping on a land
mine. He reported that, following service, he worked for ten
years with the Department of Labor of the State of Florida.
Thereafter, he held two short- term positions as a city
manager for two different towns, and he had been unemployed
for the last five years. He had been married three times.
He indicated that he had a difficult time relating to people,
and over time his symptoms had gradually worsened to the
point that he would get upset and explode over a small
provocation. He related symptoms of blind rage, depression,
nightmares, daymares, and intrusive thoughts. He had had
some psychiatric treatment in the past with a hospitalization
in 1985 stemming from a drinking episode in which he just
went "crazy."
On mental status examination, the appellant was cooperative
and friendly during the entire interview. He kept good eye
contact, presented himself in a normal fashion and spoke in a
coherent, relevant manner. He revealed no changes in
emotional attitude and he was able to smile freely without
any difficulties. His content of thought seemed to reveal
problems relating to Vietnam, particularly in changes of his
attitude which were manifested in periods of anger, rage, and
difficulty in relating to others. His PTSD had affected his
ability to find a job. Cognitive functioning seemed to be
well preserved, he had good insight into his problems and his
judgment was fairly good. Diagnosis was of PTSD. Global
Assessment Functioning (GAF) score was a 60 on the day of
examination, and a 60 for the past twelve months.
By means of a rating decision dated in May 1996, the RO
granted the appellant's claim for PTSD, and assigned a 10
percent disability evaluation effective to the date of claim.
VA outpatient treatment records reveal the appellant's report
of suicidal ideations in April 1996. In May 1996, he was
admitted for VA inpatient treatment due to severe, chronic
PTSD. He reported additional symptomatology of anxiety,
panic attacks and hypervigilance. It was noted that he lived
a remarkably isolated and avoidant life- style. He was not
psychotic. He was discharged in July 1996 with a GAF score
of 50. His prognosis was fair for better management of his
social isolation but poor for potential future employment.
In September 1996, the RO assigned a temporary total
evaluation for his period of VA hospitalization and,
thereafter, assigned the 50 percent disability evaluation
which has remained in effect to the current appeal.
VA outpatient treatment records, dated from July 1996 to
August 1997, include additional report of violent impulses,
mistrust and rage. In June 1997, the appellant presented
testimony regarding his PTSD symptomatology. He indicated
that he received individual treatment therapy for his PTSD
twice a month at VA. He complained of difficulty sleeping,
daymares, nightmares, flashbacks, suicidal depression, panic
attacks, and cold sweats. He had three failed marriages. He
barricaded himself in his room at night with various devices,
such as blocks, bars, bells and rattles, and he kept numerous
guns in his room. He led an isolated and reclusive life-
style. He had a problem of alienating people he met. He
held a business degree, but he felt that his PTSD and six
year gap of unemployment was a barrier in obtaining a job.
On VA PTSD examination in August 1997, the appellant
continued to report nightmares during which he became very
violent with screaming. He indicated that occasional severe
tinnitus symptoms triggered flashbacks. He continued to lead
a reclusive and isolated life- style. On mental status
examination, he was pleasant and cooperative throughout the
interview. He presented his symptoms in an easy manner
without hesitation and he described in length his nightmares.
He stated that he had managed his depression and suicidal
ideations better than in the past. Content of thought
indicated continued problem of Vietnam mainly in the form of
isolation from any kind intersocial interactions. Cognitive
function was within normal limits. He showed insight into
his problems and his judgment was considered adequate. His
GAF score was 52 with a score of 52 for the past 12 months.
Disability ratings are based on the average impairment of
earning capacity resulting from disability. 38 U.S.C.A. §
1155 (West 1991); 38 C.F.R. § 4.1 (1998). Separate
diagnostic codes identify the various disabilities. Where
there is a question as to which of two evaluations shall be
applied, the higher evaluations will be assigned if the
disability more closely approximates the criteria required
for that rating. Otherwise, the lower rating will be
assigned. 38 C.F.R. § 4.7 (1998). The determination of
whether an increased evaluation is warranted is to be based
on a review of the entire evidence of record and the
application of all pertinent regulations. See Schafrath v.
Derwinski, 1 Vet.App. 589 (1991).
The Board notes that the appellant filed his claim for an
increased rating for PTSD by letter received by the RO on
July 18, 1996. By regulatory amendment effective November 7,
1996, substantive changes were made to the schedular criteria
for evaluating mental disorders, including PTSD, formerly set
forth in 38 C.F.R. §§ 4.125- 4.132 (1996) (redesignated as
38 C.F.R. §§ 4.125- 4.130 (1998)). See 61 Fed. Reg. 52695-
52702 (1996). Generally, when the laws or regulations change
while a case is pending, the version most favorable to the
claimant applies, absent congressional intent to the
contrary. Karnas v. Derwinski, 1 Vet.App. 308, 312-13
(1991). But see Rhodan v. West, No. 96-1080 (U.S. Vet.App.
Dec. 1, 1998).
The severity of a psychiatric disability is ascertained, for
VA rating purposes, by application of the criteria set forth
in VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4
(Schedule). Under the criteria which became effective on
Nov. 7, 1996, a 50 percent disability evaluation for PTSD,
pursuant to Diagnostic Code 9411, contemplates occupational
and social impairment with reduced reliability and
productivity due to such symptoms as: flattened affect;
circumstantial, circulatory, or stereotyped speech; panic
attacks more than once a week; difficulty in understanding
complex commands; impairment of short- and long-term memory
(e.g. retention of only highly learned material, forgetting
to complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; and difficulty
in establishing and maintaining effective work and social
relationships.
A 70 percent rating is warranted for occupational and social
impairment with deficiencies in most areas such as work,
school, family relations, judgment, thinking, or mood, due to
such items as: suicidal ideation; obsessional rituals which
interfere with routine activity; speech intermittently
illogical, obscure or irrelevant; near-continuous panic or
depression affecting the ability to function independently,
appropriately and effectively; impaired impulse control (such
as unprovoked irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or work- like settings); and inability to establish and
maintain effective relationships.
A 100 percent evaluation is warranted where there is total
occupational and social impairment, due to symptoms such as:
gross impairment in thought processes or communication;
persistent delusions or hallucinations; grossly inappropriate
behavior; persistent danger of hurting others; intermittent
inability to perform activities of daily living (including
maintenance of minimal personal hygiene); disorientation to
time or place; memory loss for names of close relatives, own
occupation or name.
GAF is a scale reflecting the "psychological, social, and
occupational functioning on a hypothetical continuum of
mental health- illness." See Richard v. Brown, 9 Vet.App.
266 (1996)(citing Diagnostic and Statistical Manual of Mental
Disorders 32, 4th ed.1994)(DSM-IV). Rating agencies are
charged with the responsibility of being thoroughly familiar
with DSM-IV in order to apply the general rating criteria for
rating mental disorders. 38 C.F.R. § 4.130 (1998). A GAF of
60 is defined as "[m]oderate symptoms (e.g. flat affect and
circumstantial speech, occasional panic attacks) OR moderate
difficulty in social, occupational, or school functioning
(e.g. few friends, conflicts with peers or co- workers).
DSM-IV. A GAF of 50 is defined as "serious symptoms (e.g.,
suicidal ideation, severe obsessional rituals, frequent
shoplifting) OR any serious impairment in social,
occupational, or school functioning (e.g., no friends, unable
to keep a job). Ibid.
In its evaluation, the Board must determine whether the
weight of the evidence supports the claim or is in relative
equipoise, with the appellant prevailing in either event.
However, if the weight of the evidence is against the
appellant's claim, the claim must be denied. 38 U.S.C.A. §
5107(b) (West 1991); 38 C.F.R. § 3.102 (1998); Gilbert v.
Derwinski, 1 Vet.App. 49 (1990).
In this case, the Board has reviewed the entire record,
including the testimony, statements of record and medical
records. The evidence in favor of an increased rating shows
that the appellant's PTSD is manifested primarily by sleep
disturbances, hypervigilance, nightmares, daymares, intrusive
thoughts of Vietnam, social isolation, and depression. He
has occasional symptoms of suicidal ideations and flashbacks.
He barricades himself in his room at night, and he has
displayed some violent impulses. He has difficulty in
relating to others which affects his ability to get a job,
and his GAF scores over time have shown a chronological
deterioration in his overall social and occupational
functioning. His current GAF of 52 score is indicative of
near serious impairment in social and occupational
functioning.
On the other hand, the appellant's speech is logical and
coherent and his attention, memory and memory are intact. He
does not neglect his personal appearance or hygiene. He does
not display psychotic symptoms. In the opinion of the Board,
the evidence for an increased rating for PTSD is in relative
equipoise and, with application of the benefit of the doubt
rule, the Board finds that the appellant exhibits social and
industrial impairment with deficiencies in most areas,
warranting a 70 percent schedular evaluation for his PTSD.
In the Board's opinion, the evidence of record does not show
that the appellant's psychoneurotic symptoms equate with
total occupational and social impairment, as required for a
100 percent schedular evaluation under criteria of Diagnostic
Code 9411 currently in effect. There is no complaint of
delusions and hallucinations. His behavior is not grossly
inappropriate. He has a poor potential for future employment
but not a total bar. In this respect, he is currently living
on a farm taking care of cows and horses. His overall
disability from his PTSD does not more nearly approximate the
total social and industrial impairment required for the 100
percent schedular rating, and as such the higher rating is
not warranted.
Under the criteria in effect prior to November 1996, a 100
percent rating was warranted where the attitudes of all
contacts except the most intimate were so adversely affected
as to result in virtual isolation in the community. Totally
incapacitating psychoneurotic symptoms bordering on gross
repudiation of reality with disturbed thought or behavioral
processes associated with almost all daily activities such as
fantasy, confusion, panic and explosions of aggressive energy
resulting in profound retreat from reality. Demonstrably
unable to obtain or retain employment.
The evidence does not show that the appellant's
psychoneurotic symptoms are totally incapacitating and/or
that they border on gross repudiation of reality as required
for a 100 percent schedular evaluation under the criteria of
Diagnostic Code 9411 in effect prior to November 1996. His
overall disability from his PTSD does not more nearly
approximate the total social and industrial inadaptability
required for the 100 percent schedular rating, and as such
the higher rating is not warranted under the replaced
regulations.
The benefit of the doubt rule has been resolved in favor of
the appellant. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R.
§ 3.102, 4.3 (1998).
ORDER
Service connection for right ear high frequency sensorineural
hearing loss is granted.
Service connection for right ear tinnitus is granted.
A 70 percent schedular evaluation for PTSD is granted,
subject to the criteria which govern the payment of monetary
awards.
REMAND
During his appearance before the RO in June 1997, the
appellant testified to recurrent sinus infections and
recurrent infections involving the outer skin of the nose
ever since his in- service nose operation. The record is
unclear as to whether such disorders should be considered
residuals of the service connected postoperative submucous
resection with retained foreign body. All symptomatology
that is part and parcel of this disability must be
established by the medical evidence before the increased
rating issue can be decided.
Additionally, in view of the Board's decision that a 70
percent schedular rating for PTSD is in order, the appellant
now meets the schedular criteria for a total rating based on
individual unemployability (TDIU) pursuant to 38 C.F.R.
§ 4.16. In fact, he filed an as yet unacknowledged claim for
this benefit in July 1997. The RO must now consider the
claim under 38 C.F.R. § 4.16.
Accordingly, the case is REMANDED for the following action:
1. The RO should ask the examiner who
conducted the August 1997 VA nose and
sinuses examination to identify all
manifestations of the service connected
postoperative submucous resection with
retained foreign body. In doing so, the
examiner should particularly address
whether the recurrent sinus infections
and infections involving the outer skin
of the nose referred to by the appellant
are part of, or residuals of, the
postoperative submucous resection with
retained foreign body. The claims file
should again be made available to this
examiner. If the aforementioned examiner
is no longer available, or if he wishes
to examine the veteran again, the RO
should schedule another ENT examination.
The purpose of the examination is set
forth earlier in this paragraph. The
claims file must be made available to the
examiner.
2. The RO should request that the
appellant complete an up-to-date VA Form
21-8940, and then undertake any further
development deemed necessary to decide
the TDIU claim or increased rating claim.
Such development should include obtaining
up-to-date treatment records.
3. When the development deemed necessary
has been completed, the RO should
adjudicate the TDIU claim and should
readjudicate the increased rating claim.
If any benefit sought for which a notice
of disagreement has been filed is not
granted, a statement of the case should
be furnished which contains the relevant
criteria. The appellant should be
informed that, as to any new issue, he
must perfect the appeal.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
NANCY I. PHILLIPS
Member, Board of Veterans' Appeals
Department of Veterans Affairs